International Law Part 19

has been appointed.................................................

I do hereby recognize him as such, and declare him free to exercise and enjoy such functions, powers, and privileges as are allowed to ....................................................

In Testimony whereof, I have caused these Letters to be made Patent, and the Seal of the United States [SEAL to be hereunto affixed.

OF THE Given under my hand at the City of Was.h.i.+ngton UNITED the..............day of.............., A.D. 19...., STATES] and of the Independence of the United States of America, the............

By the President, ...........................

_Secretary of State._

(_d_) =Functions.= The consul, as the officer representing particularly the commercial and business interests of the state from which he comes, and in a minor degree the other individual interests, has a great variety of functions. His functions are in general such as affect only indirectly the state in which he resides. He is not, like the diplomatic agent, directly concerned with affairs of state; he has no representative character, though in effect he is often the local representative of the diplomatic agent accredited to the state.

The functions of a consul are largely matters determined by custom, treaty stipulation, and by special provisions of his _exequatur_.

Within these limits domestic law of the accrediting state determines the consul's functions. (1) In general the consul has many duties in connection with the _commercial interests_ of the subjects of the state which he serves. These duties extend both to maritime and land commerce.

The consul is to care that the provisions of commercial treaties are observed, that proper invoices of goods are submitted, and that s.h.i.+pment is in accord with the regulations of the state which he serves. He is to furnish such reports in regard to commercial and economic conditions as are required. These reports often involve many subjects only indirectly related to trade and commerce. (2) The consul has many duties relating to the _maritime service_ of the state which accredits him. This usually includes such supervision of merchant vessels as the domestic law of his state may grant to him, together with that accorded by custom. His office is a place of deposit of a s.h.i.+p's papers while the s.h.i.+p remains in port. When necessary he may supervise the s.h.i.+pment, wages, relief, transportation, and discharge of seamen, the reclaiming of deserters, the care of the effects of deceased seamen, in some states the adjudication of disputes between masters, officers, and crews, and if necessary he may intervene in cases of mutiny or insubordination. In case of wrecked vessels the consul is usually left considerable lat.i.tude in his action. The consul may also authenticate the bill of sale of a foreign vessel to the subject of the state which accredits him. This authentication ent.i.tles the vessel to the protection of the consul's state. The consul may also be intrusted with other duties by treaties and custom of given states. (3) The consul _represents_ the _interests of the citizens_ of the state in whose service he is, in matters of authentication of acts under seal, in administration of the property of citizens within his district, in taking charge of effects of deceased citizens, in arbitration of disputes voluntarily submitted to him, vise of pa.s.sports, and minor services. (4) The consul _furnishes_ to the state which he represents _information_ upon a great variety of subjects particularly relating to commercial, economic, and political affairs, the conditions of navigation, and general hydrographic information.

Besides this he is expected to keep his state informed of the events of interest transpiring within his district.

As Hall says: "In the performance of these and similar duties the action of a consul is evidently not international. He is an officer of his state to whom are entrusted special functions which can be carried out in a foreign country without interfering with its jurisdiction. His international action does not extend beyond the unofficial employment of such influence as he may possess, through the fact of his being an official and through his personal character, to a.s.sist compatriots who may be in need of his help with the authorities of the country. If he considers it necessary that formal representations shall be made to its government as to treatment experienced by them or other matters concerning them, the step ought in strictness to be taken through the resident diplomatic agent of his state,--he not having himself a recognized right to make such communications."[260] In late years there has been in the consular conventions between different states a tendency to extend to consuls the right of complaint to the local authorities in case "of any infraction of the treaties or conventions existing between the states," and "if the complaint should not be satisfactorily redressed, the consular officer, in the absence of the diplomatic agent of his country, may apply directly to the government of the country where he resides."[261]

(_e_) In some of the =Eastern and non-Christian states= consuls have special powers and functions in addition to the ordinary powers and functions. The extent of the powers varies, and is usually determined by treaty. With the advance of civilization these special functions are withdrawn, as by the Treaty of the United States with j.a.pan, Nov. 22, 1894,[262] the jurisdiction of the consular courts of the United States in j.a.pan came to an end July 17, 1899.

In general, in Mohammedan and non-Christian states, treaty stipulations secure to the consuls of Western states the right of exercising extensive criminal and civil jurisdiction in cases involving citizens of their own and the Eastern states, or in cases involving citizens of their own and other Western states.[263] In some of the Eastern states the consuls have exclusive jurisdiction over all cases to which citizens of their states are parties;[264] in others the cases involving citizens of the Eastern and Western states are tried in the court of the defendant in the presence of the "authorized official of the plaintiff's nationality," who may enter protest if the proceedings are not in accord with justice,[265] while in certain states or for certain cases mixed courts are const.i.tuted. Certain Western states in their domestic laws make provisions for appeal from the decision of the consular court to specified authorities as to the diplomatic agent or to some domestic tribunal.

This jurisdiction is exceptional, furnishes no precedents for international law, tends to become more restricted, and will doubtless gradually disappear.[266]

(_f_) The =privileges and immunities= vary according to the states and from the fact that a consul may be, (1) a citizen of the state in which he exercises his consular functions, (2) a domiciled alien, (3) an alien engaged in business or some other occupation in the state where he exercises his functions, or (4) a citizen of the accrediting state engaged exclusively upon consular business.[267] It is, however, necessary that the state which grants an _exequatur_ to, or receives as consul a person from one of the first three cla.s.ses, grant to such person a measure of privilege and immunity consistent with the free performance of his consular duties.

Each consul has the privilege of placing above the door of his house the arms of the state which he serves, generally also of flying its flag.

The archives and official property are inviolable.

In the case of a consul not a citizen of the receiving state and engaged exclusively in consular business, exemption from arrest except on a criminal charge, when he may be punished by local laws or sent home for trial; exemption from witness duty, though testimony may be taken in writing; exemption from taxation; exemption from military charges and service,--is usually conceded by custom and often by treaty. It is not, however, conceded that the consular residence may be used as an asylum.

The consul of the third cla.s.s, who, though an alien to the receiving state, engages in business other than consular duties, is subject to all local laws governing similarly circ.u.mstanced foreigners, except when in the performance of his functions. His consular effects must be kept distinct from those appertaining to his business capacity, which last are under local law.

The domiciled alien exercising consular functions is subject to local law as others similarly circ.u.mstanced, which, in some states, may involve considerable obligations. The freedom from local restrictions sufficient for the convenient performance of his consular duties is implied in the grant of the _exequatur_.

The reception of a citizen as a consular representative of a foreign state does not confer upon him the personal privileges and immunities of any of the other cla.s.ses, but only the immunities attaching to the office itself, and absolutely necessary for the performance of its duties, as the right to use the arms above the office door, the inviolability of archives, and respect for his authority while in the performance of his functions.

In some of the Eastern states and in some of the non-Christian and semicivilized states consuls are entirely exempt from local jurisdiction, enjoying exemptions similar to those of diplomatic agents.

In time of war the house of the consul is, when flying the flag of the state which he serves, specially protected, and liable to injury only in case of urgent military necessity. Consuls do not necessarily withdraw because of hostilities with the accrediting state.[268]

In general, the consul, by virtue of his public office, is ent.i.tled to more respect than a simple citizen, or, as Heffter puts it, "consuls are ent.i.tled to that measure of inviolability which will enable them to exercise their consular functions without personal inconvenience."[269]

(_g_) =The consular office may be vacated= by a given occupant, (1) by death, (2) by recall, (3) by expiration of his term of service, (4) by revocation of his _exequatur_. This last cause is the only one needing attention. The _exequatur_ may be revoked by the state issuing it, if the conduct of the holder be displeasing to the state. The state issuing the _exequatur_ is sole judge. This does not necessarily imply any discourtesy to the accrediting state, as the consul does not represent the sovereignty of the state. It is customary, however, to give the accrediting state an opportunity to recall its consul. _Exequaturs_ have, on several occasions, been withdrawn from consuls who have directly or indirectly aided the enemies of the receiving state, or have given offense by their partic.i.p.ation in the public affairs of the receiving state. Consequently consuls are usually officially advised to refrain so far as possible from expressions of their opinions upon public affairs, either of the receiving or sending state.

CHAPTER XIV

TREATIES

81. +Definition.+

82. +Other Forms of International Agreements.+ (_a_) Protocol.

(_b_) Declarations.

(_c_) Memoranda.

(_d_) Letters, notes.

(_e_) Sponsions.

(_f_) Cartels.

83. +The Negotiation of Treaties.+ (_a_) The agreement.

(_b_) The draft.

(_c_) Signs and seals.

(_d_) Ratification.

84. +The Validity of Treaties.+ (_a_) International capacity.

(_b_) Due authorization.

(_c_) Freedom of consent.

(_d_) Conformity to law.

85. +The Cla.s.sification of Treaties.+

86. +The Interpretation of Treaties.+

87. +The Termination of Treaties.+

-- 81. Definition

A treaty is an agreement, generally in writing, and always in conformity with law, between two or more states. A treaty may establish, modify, or terminate obligations. These obligations must be such as are legally within the capacity of the states concerned to negotiate. A treaty runs between states only. As distinguished from other forms of international agreement, a treaty is usually concerned with matters of high state importance, with a considerable number of questions, or with matters involving several states.

Separate articles are clauses attached to a treaty after ratification, and to be interpreted with reference to the whole.

-- 82. Other Forms of International Agreements

Besides the treaty, which is the most formal international agreement, there may be various other methods of expressing the terms of international agreements. The importance of the matter contained in the various doc.u.ments is not necessarily in proportion to their formality.

The terms "convention" and "treaty" are very generally used interchangeably, though strictly the scope of a convention is less broad, and usually applies to some specific subject, as to the regulation of commerce, navigation, consular service, postal service, naturalization, extradition, boundaries, etc. The terms below are often used loosely in practice.

(_a_) =A protocol=, or _proces verbal_, is usually in the form of official minutes, giving the conclusions of an international conference and signed at the end of each session by the negotiators. This does not require ratification by the sovereign as in the case of treaties and conventions, though it is equally binding upon the good faith of the states concerned. Ordinarily the persons signing the protocol have been duly authorized by their respective states in advance. The term "protocol" is sometimes applied to the preliminary draft of an agreement between two or more states as to the agreements entered into by negotiators in preparation of a more formal doc.u.ment, such as a treaty or convention.[270]

(_b_) =Declarations= are usually doc.u.ments containing reciprocal agreements of states, as in granting equal privileges in matters of trade-marks, copyrights, etc., to the citizens of each state. The term is used for the doc.u.ments, (1) which outline the policy or course of conduct which one or more states propose to pursue under certain circ.u.mstances, (2) which enunciate the principles adopted, or (3) which set forth the reasons justifying a given act.

(_c_) The terms "=memoranda=" and "=memoires=" are used to indicate the doc.u.ments in which the principles entering an international discussion are set forth, together with the probable conclusions. These doc.u.ments may be considered by the proper authorities, _e.g._ may be sent to the foreign secretaries of the states concerned, and _contre-memoires_ may be submitted. These doc.u.ments are generally unsigned.

(_d_) Besides the above, there may be in diplomatic negotiations =letters= between the agents, in which the use of the first or second person is common, and =notes=, which are more formal and usually in the third person. These letters, if made public, may have much force, as in the case of the collective note of the powers commonly called the "Andra.s.sy note," by which the Powers of Europe in 1875 held that in Turkey "reform must be adopted to put a stop to a disastrous and b.l.o.o.d.y contest."